PHULWATIA DEVI Vs. LAL MOHAR

JUDGEMENT

(1.) THE present revision has been filed against the order dated 11.7.1994 passed by IInd Additional Sessions Judge in Criminal Re ­vision No. 302 of 1993 allowing the revision and setting aside the judgment -and order passed by IInd Additional Munsif Magis ­trate Ballia in Criminal Case No. 364 of 1991 (Phulvatia Devi v. lal Mohar) granting maintenance of Rs. 150/ - per month in fa ­vour of the applicant Phulwatia and Rs. 100/ - to each children.

(2.) IN the present revision the notices were issued on 26.8.1996. As per the office report dated 24.1.2003 the notices issued for service upon the opposite party No. 1 lal Mohar was received back after service. Thereafter on 27.1.2003 the record was summoned. As per the office report dated 15.9 2008 the record of the Revisional Court was weeded out. However, the record of the lower Court in Criminal Case No. 364 of 1991 has been received and the same is before the Court. Inspite of the service of notice neither any reply has been filed by the opposite party No. 1 nor any one ap ­peared on his behalf.

(3.) LEARNED Counsel for the applicant contended that the learned Magistrate has clearly given finding that there was suffi ­cient reason to live separately as she has stated in her statement that she was being beaten and even there was threatening to administer poison and as such she has rightly refused to live with her husband, opposite party No. 2. He further contended that the Revisional Court has no power to substitute the finding of the fact recorded by the learned Magistrate. His contention is that the applicant was compelled to leave the house of the husband and she had no sufficient means for her maintenance, hence the application for maintenance under section 125 Cr.P.C. was allowed by the learned Magistrate but the Revisional Court has committed error in interfering in the finding of fact. She has constructed a hut separately though on the land belong ­ing to her husband to live separately and whatever was the earning that was not sufficient for her own maintenance and maintenance of two children living along with her.